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Conestoga En Banc Hearing Denied, Supreme Court Appeal Coming

By Gabriella Khorasanee, JD | Last updated on

Earlier this month we posted about the Third Circuit's opinion in Conestoga Wood Specialties Corp. v. Sebelius, that held that secular, for-profit corporations can't exercise religion under the First Amendment. The question arose in the context of a family-owned company having to provide birth control under the "Obamacare" contraception mandates.

The Circuit Splits

The Conestoga case is significant (and controversial) because it creates two circuit splits: one on the issue of the "passed through" theory and second on whether a secular, for-profit corporation can pursue a free exercise claim. The Conestoga court rejected the Ninth Circuit's theory that a business owner's religious beliefs are "passed through" to his corporation. The Conestoga court also disagreed with the Tenth Circuit that a for-profit corporation has Article III standing to pursue a free exercise of religion claim.

Rehearing En Banc

Soon after the decision was handed down, Conestoga sought re-hearing of the case by the Third Circuit en banc. Reserved for the most important cases, en banc review is very rare. In a twenty-three page petition, Conestoga made its case to the Third Circuit asking for en banc review, relying heavily on the fact that the Tenth Circuit's Hobby Lobby case was decided en banc.

Last week the Third Circuit voted, and with a majority voting against review, the petition for en banc review was denied.

Supreme Court Review

The Alliance Defending Freedom's attorneys are representing the Hahns, the owners of Conestoga and stated:

Every American, including family business owners like the Hahns, should be free to live and do business according to their faith ... The cost of religious freedom for this family, as with other job creators across the country, could result in massive fines that would cripple family businesses and threaten jobs if the government ultimately has its way.

The only option now is for Conestoga to appeal to the U.S. Supreme Court, which the Alliance for Defending Freedom has confirmed it will. Supreme Court review is becoming more and more likely, especially in light of the circuit split with the 10th Circuit as a result of the Hobby Lobby decision.

We'll have to wait for the next term to know for sure.

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